{"id":8260,"date":"2007-10-11T15:39:42","date_gmt":"2007-10-11T20:39:42","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/ethicalesq\/2007\/10\/11\/wrecklessly-unconstitutional-new-l"},"modified":"2011-08-05T14:53:41","modified_gmt":"2011-08-05T18:53:41","slug":"wrecklessly-unconstitutional-new-local-sex-offender-laws-passed-yes","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2007\/10\/11\/wrecklessly-unconstitutional-new-local-sex-offender-laws-passed-yes\/","title":{"rendered":"recklessly unconstitutional: new local sex offender laws passed yesterday"},"content":{"rendered":"
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\"exitSign\"\u00a0\u00a0 update<\/strong><\/em> (Oct. 12, 2007): Prof. Douglas Berman asked today, at his Sentencing Law & Policy <\/em>weblog, “When and how will SCOTUS address residency restrictions?<\/a>“. Doug says: “All these developments confirm my instinct that it is only a matter of time before the US Supreme Court is going to have to take up legal challenges to sex offender residency restrictions. It is interesting to speculate exactly when and how these issues will come before the High Court.”<\/p>\n

Like Doug Berman, I am hoping the U.S. Supreme Court will help end the battles and debates and politico equivocating over the constitutionality of sex offender exclusion laws, by distinguishing its decision in Smith v. Doe<\/em>, which upheld Alaska’s version of Megan’s Law —<\/em> requiring sex offenders to register their addresses<\/em> — as not amounting to unlawful ex post facto<\/em> punishment. Ohio’s 1st District Court of Appeals, in Hyle v. Porter<\/a><\/em>, offered the weak excuses that are typical of lower courts that have taken the easy, superficial (or, as David Hess<\/a> says, “see no evil”) approach of upholding sex offender bans by blindly pointing to Smith v. Doe <\/em>(see our discussion<\/a> on Oct. 7). Far more honest and better-reasoned are cases such as Mikaloff v. Walsh<\/font><\/em><\/a>, (Northern District of Ohio, Sept. 4, 2007), which refused to apply Ohio’s sex offender residency law retroactively. The Mikaloff<\/em> opinion stressed:<\/font><\/p>\n

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“In upholding notification and registration requirements as nonpunitive restrictions, the Doe <\/em>Court <\/font>explicitly emphasized that these requirements \u201c[did] not restrain activities sex offenders may pursue <\/font>but leaves them free to change jobs or residences.\u201d Doe<\/font><\/em><\/font><\/font>, 538 U.S. at 100<\/font>.<\/font><\/font>“<\/font><\/p>\n<\/blockquote>\n

In addition, see Kentucky v. Baker<\/em><\/a>, (Case Number, 07-M-00604, etc., Martin J. Sheehan, District Judge), which notes that \u201cresidency restrictions carry major consequences above and beyond the location of one\u2019s home.\u201d <\/font>And, see the John Does I – IV v. Indianapolis<\/a><\/em>, (Fed. Dist. Ct. So.Dist. Indiana), which distinguishes Smith v. Doe in concluding that banishing sex offenders from the City limits is ex post facto<\/em> punishment..<\/font><\/p><\/blockquote>\n<\/blockquote>\n

\"exitSignN\" T<\/em><\/strong>hey’re Useless in Utica and Nuts in Newton. As our Schenectady PanderPols<\/a> did in June, and despite reams of information that they’re acting foolishly and unconstitutionally, local politicians on the Oneida County Legislature<\/a>, in Utica, NY, and the Town Council<\/a> of Newton<\/a>, NJ, passed sweeping sex offender exclusion laws yesterday. See “Stricter rules for sex offenders approved<\/a>,” The Utica Observer-Dispatch<\/em> (Oct ,10, 2007); and “Newton Residency Ban Approved<\/a>,” New Jersey Herald<\/em>, Oct. 11, 2007); also: “Newton Considering Sex-Offender Ban<\/a>” (New York Times<\/em>, Oct. 7, 2007).<\/p>\n

And, no, the local leaders didn’t vote in a moment of hot blood or temporary insanity. Instead, after months of “deliberations,” the 29 legislators in Oneida County and the five-member Council in Newton voted deliberately, brazenly and unanimously<\/em>. Not content with your run-of-the-mill unconstitutional residency exclusion zones:<\/p>\n